Reporter's Notebook: Congress' potential challenges with virtual voting amid coronavirus pandemic

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Why can’t they just vote from home?

You’ll hear that question a lot in the coming weeks as the coronavirus pandemic deepens. The House and Senate are already wrestling with the next phase of the coronavirus legislative response.

Work is underway behind the scenes. House Speaker Nancy Pelosi, D-Calif., wants to address pensions in the next bill. Concerns lurk over the viability of the U.S. Postal Service. President Trump is pushing $2 trillion in infrastructure. Senate Majority Leader Mitch McConnell, R-Ky., and House Minority Leader Kevin McCarthy, R-Calif., are preaching patience. They want to evaluate where the nation is and deal with potential weaknesses in the phase three coronavirus law down the road.

But lawmakers will have to return to Capitol Hill to negotiate and vote on the next bill. To say nothing of the bill after that. And the bill after that. And the bill after that.

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Pelosi ordered House Rules Committee Chairman Jim McGovern, D-Mass., to assemble a draft report on possible alternatives to convening lawmakers to vote in person -- as the risk of person-to-person contact poses a grave threat.

“We have to find ways to quickly respond to the massive problems we face -- which may mean taking personal risk,” declared a draft of the report. “But we must do so thoughtfully. Above all, we need to act in a way that keeps public safety at the forefront, while preserving the integrity of the institution so that we can continue to respond to this crisis.”

The layperson may simply ask why Congress just can’t meet over Zoom. After all, the Baltimore Symphony Orchestra performed a tele-concert of the final moments of Gustav Mahler’s Third Symphony. One high school choir crooned “Somewhere Over the Rainbow” via video conference.

But it doesn’t quite work that way in Congress.

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There are monumental Constitutional, parliamentary and procedural hurdles that the House and Senate would have to consider to implement any sort of remote voting. And Congress would want to reserve the concept of remote voting for the very type of scenario that the globe faces now. A pandemic is one. Another could be nuclear war.

Despite commissioning a report on remote voting, Pelosi appears cool to the concept of a virtual Congress.

“Let’s not waste time on something that is not going to happen,” Pelosi said this week. “There is no way we can get into remote voting without serious conversations in the House and changing the rules.”

In fact, Fox News is told that part of the reason Pelosi ordered the report was not so much to explore alternatives to in-person convergences -- but to demonstrate the colossal undertaking of implementing an e-Congress.

One thing is clear: the House and Senate simply can’t throw this together in a few weeks.

Senate Minority Whip Dick Durbin, D-Ill., and Sen. Rob Portman, R-Ohio, have both drafted a plan that would allow remote voting in the Senate for a month at a time if there is an emergency. So far, the calls of Durbin and Portman have fallen on deaf ears. In the House, Pelosi at least asked for the study. But it’s not like the House is close to members speaking from the well of the chamber, looking like a hologram of Princess Leia in Star Wars.

Article I, Section 5 of the Constitution grants the House and Senate authority to “determine the Rules of its Proceedings.” Thus, one body could implement some sort of virtual Congressional construct in times of crisis -- and the other could not.

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Congress isn’t going to turn into the Matrix (the Congrix?) any time soon. Drafting terabytes of code won’t suddenly become more important than the Office of Legislative Counsel drafting bill text. Pelosi isn’t going to trade in her title of “House Speaker” for “Super Administrator.”

There’s no precedent for the House deploying any sort of “remote voting” schematic. That includes the House voting via any alternative means during the 1918 Spanish Flu Pandemic. The House can currently approve resolutions, amendments and bills via voice vote and unanimous consent. Those methods don’t require a formal roll call vote where all 435 (currently 429) members must filter into the chamber. But Article I, Section 5 of the Constitution also mandates that the House and Senate have a quorum on hand to conduct business. A quorum is at least half of the current membership in the same room at the same time.

This is usually not a problem unless somebody makes it an issue, ala Rep. Thomas Massie, R-Ky., last week. House Rule XX currently includes provisions for diminishing the size of a quorum due to a catastrophic event. But that provision also requires that the House also declares a number of seats vacant.

One idea discussed in the House report is the concept of “paired” voting. House rules currently bar the practice. That’s where members on opposite sides of an issue agree not to vote. Thus, their votes are “paired.” House members used to pair their votes when travel to Washington was difficult in the 19th Century. One might recall that Sens. Steve Daines, R-Mont., and Lisa Murkowski, R-Ark., “paired” their votes on the confirmation of Supreme Court Justice Brett Kavanaugh in 2018. Daines had to miss the vote due to his daughter’s wedding. Murkowski opposed Kavanaugh’s confirmation. Daines was for Kavanaugh. But to offset Daines’s absence, Murkowski “paired” with her Montana colleague and voted “present.”

The House does allow “proxy” voting in committee. When there is a vote on an amendment, one often hears committee rooms echoing with various members yelling “aye by proxy” when their colleagues aren’t around. The House report notes the institution could set itself up for a challenge in court if it approves a bill that becomes law that was passed via a proxy voting formula.

Finally, there is the “cyber Congress” option. This is where lawmakers actually cast ballots remotely, via some super-encrypted system that includes multiple levels of authentication. Rep. Eric Swalwell, D-Calif., has pushed for remote voting since he arrived on Capitol Hill in 2013. The House report notes that the current electronic voting system took three years from authorization to implementation in the 1970s. Lawmakers pushed as far back as 1886 to launch electronic voting in the House. Thomas Edison even patented an electronic voting apparatus back in 1869. But Congress rejected it.

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The report argues that decentralized voting “raises serious concerns for another person accessing a Member’s system and voting on their behalf, including ‘deepfakes’ in a video-based system." The report asserts that a future remote system could include biometric authentication. But “this technology would take time to put into place.”

There is also concern about the House engineering a new system amid a global pandemic. There’s fear that implementing a new regimen now would be slapdash at best -- and could be the second coming of the app used for the Iowa Democratic Caucus.

But Constitutional concerns might outweigh cyber ones.

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Article I of the Constitution is littered with language about “meeting” and “assembling” and “attendance.” Is it even practical constitutionally for the House and Senate to vote virtually? And what if one body adopts a remote system and the other doesn’t? Would the other institution recognize the validity of such a vote?

These are questions Congress will likely address once the pandemic fades. Congress implemented a number of provisions for “continuity of government” after 9/11. Lawmakers will likely follow suit once the coronavirus scourge abates.

But here’s the difference: Congress implemented those provisions after 9/11 had come and gone. The attack was over.

Coronavirus isn’t.

Here, Congress must legislate and likely pass multiple, massive bills to preserve the very viability of the republic -- in the middle of one of the most significant challenges facing the United States.

It may seem perverse at a time of social distancing. But perhaps the only option for House and Senate members is to risk their own health -- along with the health of others -- and vote in person on Capitol Hill.